Hardin v. White

63 Iowa 633

• Court: Supreme Court of Iowa
• Decided: June 6, 1884
• Status: Published

Opinions

Adams, J.

1. Injunction: to stay execution sale: amount of bond required. I. The injunction bond filed in the case was not for double the amount of the judgment upon which the execution issued. The defendant filed a motion for increase of the bond, and for dissolution of the injunction, if the bond be not increased m . IJie court overruled the motion. The defendant complains of the action of the court in this respect.

Where proceedings in'á civiTactióñ upon a judgment are sought to be enjoined, the bond must be conditioned for the payment of the judgment; and the penalty of the bond must be double the amount thereof. Code, § § 3396 and 339T. Yery clearly, the bond in this case is insufficient, if the object of the action is to stay proceedings upon a judgment within the meaning of the statute. But the execution is general. It was not levied upon the property in question in pursuance of any express judgment or order of court to that effect, and the object of the action is not to enjoin the execution, but merely the sale under it of this particular piece of property. It would impose a great hardship to require a person, who seeks only to enjoin the sale of a par-tic alar piece of property under general execution, to file a bond in double the amount of the judgment, and conditioned for its payment. The case is widely different from one where an injunction is sought for the purpose of defeating or postponing the collection of the judgment. The denial of' the right to sell a particluar piece of property under general execution is not, in any proper sense, we think, a denial of the right to proceed under the j udgment; and, in our opinion, the statute is not susceptible of the construe-, tion which the defendant would put upon it. We think that the motion, based upon the alleged defect in the bond, that it was not for double the amount of the judgment, was properly overruled.

2. Judicial Sale for part of Judgment: sale of right of redemption for residue. II. We come, next, to the question as to whether the property was liable to the execution. The property sought sold was a mere statutory right of redemption from a sale made by the execution creditor, under a decree which embraced the indebtedness for which the execution m question was issued. The decree was rendered in pursuance of the foreclosure of several liens against the property, held by the appellant, White, which decree was for $3,690.31, bearing ten per cent interest, and for $743.18, bearing eight per cent interest. A single special execution was awarded against the property. White, instead of taking a special execution for the whole amount, took execution for the amount bearing ten jier cent interest, and sold and bid in the property for that amount, and then took a general execution for the balance, and caused the same to be levied upon the statutory right of redemption. He claims that he is entitled to make an absolute sale of the right, without leaving in the debtor the right of redemption from such sale, and that the purchaser will become entitled to a deed and immediate possession.

But we have to say that we think that, when he took execution under the decree, and sold and bid in the property, he exhausted his remedy under that decree, so far as this property is concerned.

Where property is sold upon execution subject to redemption, there is usually, we think, very little competition of bidders, and the execution creditor usually bids in the property at his own price. The debtor’s jirotection consists in his right of redemption. If the property is worth redeeming, and the debtor has not the ability to redeem, he may sell to one who can redeem. The creditor cannot properly complain, because he is supposed to have bid for the property all that it is worth to him.

But if the claims of this execution creditor should be sustained, the right of redemption given by statute would be of very little value. By reserving a portion of the judgment for a second execution, the creditor could always, upon appellant’s theory, extinguish the right of redemption, if the debtor was unable to protect himself by payment.

If the second sale is not absolute, the debtor could still be so embarrassed by the successive levies, sales and costs, that the right of redemption would, we think, ordinarily prove to be of but little value.

We do not say that a statutory right of redemption may not be sold upon execution. It has been held that it may be. Barnes v. Cavanagh, 53 Iowa, 27. But the judgment under which it was held that it might be sold was not a part of the judgment under which the first sale was made, nor so embraced in the same decree (as in the case at bar) that one execution could and should have been issued for the whole.

As tending to support the doctrine of this opinion, see Clayton v. Ellis, 50 Iowa, 590, and Hayden v. Smith, 58 Id., 285. We think that the judgment of the circuit court must be

Affirmed.'